It is reasonably common for an employer of casual employees to claim in an unfair dismissal case in the Fair Work Commission (ordinarily where legal advice has not been taken by the employer) that there has been no dismissal because the employer has simply decided not to offer further shifts to the casual employee concerned. This is how the law deals with this argument.
In this case the employer has asserted that the applicant was not dismissed from her employment because she was a casual employee and her absence from work for more than three weeks meant that she was “automatically terminated.” Unfortunately, this proposition fundamentally misconstrues the basis upon which the employment relationship might come to an end as a result of the extended absence of an employee from actual engagement and performance of work.
If an employee is absent from work for an extended period without explanation or in direct contravention of the expressed direction of the employer, then the absence of the employee may be treated by the employer to have represented the abandonment of the employment. A casual employee working on a regular and systematic basis, with a reasonable expectation of ongoing employment, cannot somehow be deemed to have had their employment “automatically terminated” when absent for an extended period when they have provided notice to the employer of that absence, and the employer has not issued any direction that the absence is not approved, and as such, would cause the employment to come to an end.
In this case, it was clear that the applicant provided the employer with advance notice of her intention to be absent from the workplace for an extended period involving international travel. The employer was made aware of the applicant’s absence, and although it provided no express approval for leave of the applicant during that period of absence, it did not indicate that the absence was not approved, and that if the absence was observed it would cause the employment to come to an end. Consequently, when the applicant telephoned Mr Arju on 6 May 2019 to confirm her notified recommencement of the performance of work at 5 pm that day, she was dismissed from her employment when Mr Arju told her that she was no longer required because her position had been replaced by another employee.”
Das v Prestigious Services (Aust) Pty Ltd t/a Mac-Field Medical Practice (2019) FWC 7628 delivered 21 November 2019 per Cambridge C